McFadyen files suit seeking elections director job back

Thursday

May 14, 2015 at 7:07 PM

He's suing New Hanover County, the county board of elections, the N.C. Board of Elections and the state board members

By Lydia CoutréLydia.Coutre@StarNewsOnline.com

NEW HANOVER COUNTY | Marvin McFadyen, former New Hanover County elections director, is suing the county, the county board of elections, the N.C. Board of Elections and the state board members after he was fired earlier this year.In the lawsuit, filed Thursday in New Hanover County Superior Court, McFadyen seeks reinstatement of his former position and compensatory damages.On Jan. 7, the New Hanover County Board of Elections, in a 2-1 vote, petitioned the state, requesting the state board remove McFadyen. Later that month, McFadyen filed a response to the 44-page petition against him, denying the allegations. State board Deputy Director Amy Strange granted the county board's petition to remove McFadyen in early February.State board Chairman Josh Howard had assigned that duty to Strange after state board Executive Director Kim Strach recused herself from considering the matter. McFadyen, represented by Shipman & Wright LLP, alleges he was not terminated correctly, a claim he also made in a Feb. 8 letter appealing the decision.State statute dictates that the executive director is to render a decision on a petition to terminate or retain a county director of elections. That decision is final unless the state board of elections defers the decision and makes a final decision after giving the county director an opportunity to be heard and present witnesses and information to the state board.“Ms. Strange was not the Executive Director of the SBOE as required by statute for a termination decision to be final,” the lawsuit states.Of the numerous allegations listed in the county board's petition, Strange's decision focuses on one issue: the availability of voted ballots on the public email server. Strange wrote that McFadyen's failure to protect confidential voter information from public view “constitutes an inexcusable breach of public trust and leads to a lack of confidence in the elections process.”The lawsuit states that McFadyen had received no written or verbal guidance informing him that confidential information received from outside the county government could be released automatically. Furthermore, the lawsuit says that at all times following the discovery of the released information, McFadyen “acted to secure confidential information... to ensure no further such releases by the county would occur, to keep the NHCBE informed of the issues and the efforts of all involved, and to pinpoint the reasons that the release occurred.”“Nevertheless, this incident appeared to provide (county board chairman John) Ferrante an opportunity to seek Mr. McFadyen's removal with a veneer of legitimacy, however thin,” the lawsuit states.The lawsuit also claims that McFadyen was deprived of his civil rights, specifically his constitutional right to due process. According to the lawsuit, prior to December 2014, the county board of elections didn't notify McFadyen that he risked termination for failing to perform any specific duties or alter specific conduct. In a Jan. 7 closed session meeting, Ferrante gave McFadyen two options: resign or face the petition released to the media and sent to the state board executive director, according to the lawsuit, which also notes that Ferrante “refused” to show McFadyen the petition and McFadyen was given no opportunity to refute the allegations as he was not informed of what they were.McFadyen was given no opportunity to refute the allegations in the petition before it was released publicly, according to the lawsuit.The petition was not permitted to be released to the public, the lawsuit states, and knowing and willful violations of state statutes that exempt that information from the public records act “constitute a Class 3 misdemeanor.”Whether McFadyen is considered a state or county employee, “no fair reading of the North Carolina General Statutes would permit the release of a preliminary disciplinary document such as the petition,” according to the lawsuit.McFadyen “has incurred significant damages as a direct and proximate result thereof, including his termination, lost wages, damage to his reputation and incursion of legal fees,” the lawsuit states.McFadyen requests a declaratory judgment as to whether he was lawfully terminated, injunctive relief mandating his reinstatement and damages in excess of $25,000.Ferrante declined to comment, deferring questions to the state board and to the county. County Attorney Wanda Copley said she hadn't received the lawsuit as of late Thursday afternoon. State board spokesman Josh Lawson said the board and its members will be represented by the attorney general's office.